Surrogacy in Michigan
Surrogacy in Michigan
Q: What is parentage?
A: Parentage is the term for the secure legal tie between a child and their parent(s). Legal parentage is critical for children’s stability and well-being.
Q: Are there guaranteed rights that flow through legal parentage?
A: Health insurance for children, inheritance rights and social security benefits for children, the ability of parents to make decisions about things like education and emergency medical care, as well as custody and parenting time, are all derived from legal parentage.
Q: Is surrogacy legal in Michigan?
A: The passing of the Michigan Family Protection Act legalized compensated and uncompensated surrogacy in Michigan.
Q: Are surrogacy contracts legal in Michigan?
A: Surrogacy contracts are now legal in Michigan.
Q: How does surrogacy currently occur in Michigan?
A: One schedules a consultation with a clinic in Michigan with surrogacy experience, where one will identify a potential gestational carrier (GC). Then, the GC will meet with the clinic to begin medical and psychological screening, along with a thorough review of the medical records pertaining to all prior pregnancies and births. One then retains two attorneys - one for intended parents (IP) and one for GC - both should have surrogacy experience. Then, the gestational carrier agreement is executed and is provided to a fertility clinic. Then, the medical process will begin, including prep and transfer. While the process proceeds, one should continue to work with the attorney to petition a court for pre-birth parentage rights.*
*This is a very brief overview. There are many other important steps to the process.
Q: Are pre-birth parentage rights guaranteed in Michigan?
A: Yes. Before the passing of the Michigan Family Protection Act, pre-birth parentage rights were not guaranteed, and individual county judges made the final decision. Today, pre-birth parentage rights are guaranteed in Michigan.
Q: What if one couldn’t find a carrier in Michigan?
A: Individuals had to consider working with an out-of-state agency to facilitate the process with a carrier in a state where surrogacy contracts are legal, pre-birth parentage rights are guaranteed, and gestational carrier compensation is allowed.
Can you give me some background about surrogacy and what the problem was in Michigan?
Over 300,000 Michiganders who want to have children can’t. One in six Michigan couples has trouble conceiving or carrying a pregnancy to term. For many people, having children is a fundamental life function, and involuntary childlessness affects people physically, emotionally, and financially.
Some women cannot carry a pregnancy because of medical conditions, such as heart disease, cancer, lupus, and Type 1 diabetes, complications from prior pregnancies, or they may not have a uterus or suffer from recurrent miscarriages and unexplained infertility. According to the World Health Organization (WHO), the American Medical Association (AMA) and the American Society for Reproductive Medicine (ASRM), medical infertility is a disease. Like any other disease, medical infertility is not a choice. Others, meanwhile, may suffer from social infertility.
Many infertile patients may turn to surrogacy to build their families as their last option for treating their infertility. For those who are unable to safely carry a pregnancy due to pre-existing health issues, surrogacy is their only option for having a biological child. Surrogacy is widely proven to be safe and effective.
From planned conception (carried out by a licensed physician called a reproductive endocrinologist) to birth, a child born from surrogacy is the intended parents' child and is not genetically linked to the gestational carrier. Surrogacy enables some infertile couples to have a baby, and in some cases, surrogacy may be a couple’s only hope to have a family. Interestingly, the first baby born in the world born via a gestational carrier was in Michigan back in 1986.
So, what’s been the deal with Michigan?
Sadly, many people were unable to build their families using surrogacy because of the insurmountable legal, financial, and emotional challenges associated with their path to parenthood. These obstacles were largely due to the outdated nature of the Surrogate Parenting Act of 1988 that did not recognize a surrogate contract. What that means is that there were no legal safeguards or administrative guidelines.
This out-of-date law proved to be crippling for those individuals and families where their only option is gestational carrier surrogacy. Michigan, which was the first state in all of the U.S. to make surrogacy contracts a felony, was the only state that criminalized contractional surrogacy. (For more on the vital role that Michigan played in the history of global surrogacy, please go here).
Additionally, Michigan did not provide a clear pathway to parentage rights for those parents who used a Michigan-based friend or family member to carry their baby to birth. Because there was no transparent guidance from the 1988 law, a majority of Michigan judges denied pre-birth parentage rights, and the biological parents were forced to adopt their own child after birth. That can take years and can come with significant legal costs. One of life’s most fundamental joys has been shrouded in red tape and hurdles.
These are just some of the pitfalls of the 1988 law, which had been left frozen in time when surrogacy was very rare and very different. Today, in the U.S., about 2% of all assisted reproductive technology cycles involve a gestational carrier. As such, Michigan needed a law in line with current times that protects all participants in the gestational carrier surrogacy process with explicit and necessary regulations.
MFA believes it was unfair that Michiganders had to leave the state to seek legal safety in other states with coherent pro-family building gestational carrier laws. This incurred unneeded exorbitant costs and created undue stress. And for those who did choose to do surrogacy in the state would have to adopt their own children. MFA strongly feels that contracts help everyone involved -- the gestational carriers, the intended parents, and the children.
The inability to carry a pregnancy is a common problem with a standard solution, and we needed safe access to the solution here in Michigan. Now, we have it with the Michigan Family Protection Act.
What did MFA do about it?
In September 2021, MFA—with the support of RESOLVE: The National Infertility Association—organized the state’s first Michigan Infertility Advocacy Day. The focus was to bring awareness to the outdated surrogacy laws in Michigan. Advocates met with their lawmakers to speak with them about the hardships caused by the Surrogate Parenting Act of 1988.
—Over 100 infertility advocates participated
—50 meetings were held with lawmakers and their staff
—That totaled over 20 hours of attention given to pro-family surrogacy reform
—500 letters of support from constituents were sent to lawmakers asking for their support
Through advocacy, education, and outreach, MFA fought for legal reforms on surrogacy in Michigan, and we now have the Michigan Family Protection Act in place.